R v Theodore, 2020 SKCA 131

Court of Appeal for Saskatchewan Citation: R v Theodore , 2020 SKCA 131 Date: 2020-11-24 Docket: CACR3084 Between: Daniel Theodore Appellant And Her Majesty the Queen Respondent Docket: CACR3086 Between: Andrew Bellegarde Appellant And Her Majesty the Queen Respondent Docket: CACR3089 Between: Bronson Gordon Appellant And Her Majesty the Queen Respondent Before: Leurer, Tholl and Kalmakoff JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Mr. Justice Kalmakoff In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Tholl On appeal from: CRM 170 of 2016, Regina Appeal heard: September 14 and 15, 2020 Counsel: Chris Murphy for Daniel Theodore Brian Pfefferle and Lauren Scharfstein for Andrew Bellegarde Christopher Funt for Bronson Gordon W. Dean Sinclair, Q.C. for the Crown Kalmakoff J.A. I. INTRODUCTION [ 1 ] In the early morning hours of April 17, 2015, in Regina, Reno Lee was killed. The circumstances of his death were gruesome. Mr. Lee was kidnapped and held by armed men for several hours. His hands and feet were bound with duct tape and zip ties.

He was shot twice in the head, at close range, with a small-caliber firearm. After that, a hand saw was used to decapitate and dismember his body. The body parts were transported and disposed of approximately an hour’s drive to the east of the city. [ 2 ] A jury found Daniel Theodore, Andrew Bellegarde and Bronson Gordon each guilty of first degree murder in relation to Mr. Lee’s death. Mr. Theodore and Mr. Bellegarde were also convicted of offering an indignity to Mr. Lee’s remains. [ 3 ] All three appeal their convictions for first degree murder. Mr.

Theodore argues that he did not receive a fair trial because the trial judge failed to ensure that jurors were properly screened for racial bias and failed to properly instruct jurors on the need to set aside biases, prejudices and stereotypical views about Indigenous persons. Mr. Bellegarde and Mr. Gordon argue that the trial judge’s final instructions to the jury were cumbersome and confusing, failed to properly explain certain aspects of the law and, as a whole, were not functionally adequate. Mr.

Bellegarde also argues that the trial judge erred by permitting a key witness for the Crown to testify from a remote location, rather than requiring that she be present in the courtroom. [ 4 ] For the reasons that follow, I would dismiss the appeals. II. BACKGROUND

[ 5 ] According to evidence led at trial, Mr. Lee was involved in the drug world. He dealt crystal methamphetamine. It was through that vocation that in early 2015 he met J.R., a young woman who lived in Regina. [ 6 ] J.R. had lived in Alberta, where she was a member of a street gang called the Alberta Warriors, before she moved to Regina. After moving to Regina, J.R. began associating with the Saskatchewan Warriors, a gang that had direct ties to the Alberta Warriors. She was also involved in drug trafficking and was addicted to crystal methamphetamine. [ 7 ] J.R. was also acquainted with Mr. Gordon, Mr.

Bellegarde and Mr. Theodore. She had met Mr. Gordon through a Saskatchewan Warriors gang member who had served jail time with Mr. Gordon. While he was still incarcerated, Mr. Gordon had enlisted J.R. to sell drugs for him and to collect money from his debtors. This continued after Mr. Gordon was released from custody in March of 2015. [ 8 ] J.R. considered Mr. Bellegarde to be a close friend. She knew him to be a member of the Indian Mafia, a street gang with close ties to the Saskatchewan Warriors. [ 9 ] J.R. had met Mr. Theodore through Mr. Gordon. To her knowledge, Mr. Gordon and Mr.

Theodore were “partners” in the drug business. [ 10 ] Soon after J.R. met Mr. Lee, he asked her if she would sell crystal methamphetamine for him. She agreed to do so. Mr. Lee supplied her with quantities of the drug to sell. [ 11 ] In the second week of April 2015, Mr. Lee asked J.R. to help him make a drug run from Calgary to Regina. She met him in Strathmore, Alberta, and took possession of approximately 4 kilograms of crystal methamphetamine. J.R. transported the drugs back to Regina in the early morning hours of April 16, 2015 and transferred them back to Mr.

Lee. [ 12 ] After completing this drug run, J.R. went to Mr. Gordon’s apartment and told him about Mr. Lee and his drug enterprise. Mr. Gordon proposed a “business meeting” with Mr. Lee to discuss an arrangement relating to their respective drug dealing operations. J.R. spoke to Mr. Lee, and he agreed to meet with Mr. Gordon later that day. [ 13 ] On the evening of April 16, 2015, J.R. and Mr. Lee met Mr. Gordon at a restaurant in Regina. They each arrived there separately. The meeting was cordial. Mr. Gordon said he wanted to assess the quality of Mr. Lee’s product but preferred not to do so in a public place.

Mr. Gordon suggested that they go to his apartment to continue the meeting. Mr. Lee agreed. J.R. and Mr. Lee drove together to Mr. Gordon’s apartment. [ 14 ] Unknown to J.R. and Mr. Lee, Mr. Gordon had arranged for other people to be at his apartment. One of those persons was J.D, a fentanyl addict who also sold cocaine and crystal methamphetamine for Mr. Gordon. At the time, J.D. owed Mr. Gordon approximately $800 for drugs that Mr. Gordon had fronted him. Mr. Gordon sent a text message telling J.D. to come to his apartment that evening, offering him an opportunity to work off his debt. When J.D. arrived at Mr.

Gordon’s apartment, he was escorted to a bedroom. Mr. Bellegarde was already in that bedroom, armed with a sawed-off .22 calibre rifle. Mr. Gordon gave J.D. a sawed-off shotgun and instructed him to wait there as well. Mr. Gordon told J.D. that he was going to help him collect a drug debt. [ 15 ] When J.R. and Mr. Lee got to Mr. Gordon’s apartment, Mr. Theodore was also there, along with three other women. Mr. Lee and J.R. sat down at the kitchen table with Mr. Gordon and Mr. Theodore. They began to discuss the proposed business arrangement. According to J.R., either Mr. Gordon or Mr.

Theodore suggested they go to the bedroom to continue the discussion because they were concerned about the three other women in the apartment overhearing it. Mr. Lee agreed. [ 16 ] J.D. and Mr. Bellegarde were waiting in the bedroom. Once Mr. Lee entered, he was assaulted, and his mobile phone was taken. Eventually, Mr. Gordon instructed the others to take Mr. Lee to a different location. He was escorted to J.R.’s vehicle. Mr. Theodore, Mr. Bellegarde and J.D. got in with them. J.R. was instructed to drive to a house located on Garnet Street. Once they got there, Mr. Theodore, Mr. Bellegarde and J.D. took Mr.

Lee into the house while J.R. parked the vehicle. Mr. Lee was forced to go to the basement. [ 17 ] The Garnet Street house was the residence of D.B. and K.A. They both had ties to Mr. Gordon. D.B. had known Mr. Gordon since they were children. Mr. Gordon also supplied D.B. and K.A. with cocaine to use and fentanyl to sell. One of the people to whom D.B. sold fentanyl was J.D. [ 18 ] Shortly before 10:00 p.m. on April 16, 2015, D.B. received a call from either Mr. Theodore or Mr. Gordon, advising that “someone” was coming to their house. Minutes later, Mr. Theodore, Mr. Bellegarde, and J.D. walked in with Mr. Lee.

Mr. Theodore asked D.B. if he had any duct tape or zip ties. When D.B. responded that he had none, Mr. Theodore and J.R. left to get some. D.B. wanted to know what was going on. He was instructed to talk to Mr. Gordon. [ 19 ] Mr. Theodore soon returned with a roll of duct tape and instructed J.D. to bind Mr. Lee’s wrists and ankles. J.D. complied. Throughout the evening, J.D. kept asking Mr. Theodore what was happening. Each time he did so, Mr. Theodore instructed him to ask Mr. Gordon. After contacting Mr. Gordon and receiving vague answers from him, J.D. left the house and did not return.

Given what they had observed, D.B. and K.A. also became concerned about what may be happening. They raised that concern with Mr. Gordon. He instructed them to leave the house for the night and gave them money for gas. D.B. and K.A. drove to Melville and spent the night there. [ 20 ] Mr. Bellegarde, Mr. Theodore and J.R. stayed at the Garnet Street house. Mr. Bellegarde stayed downstairs with Mr. Lee, who remained bound with the duct tape. J.R. stayed upstairs, and Mr. Theodore went back and forth between the main floor and the basement. Mr. Theodore and Mr. Bellegarde interrogated Mr.

Lee about where he kept his drugs and his money. At some point during the night, Mr. Lee was shot twice in the head, from close range, with a .22 calibre firearm. [ 21 ] After the shooting, Mr. Bellegarde came up from the basement, handed the sawed-off .22 calibre rifle to J.R. and told her to clean it. Mr. Theodore told her to wipe the shells clean. They all went to McDonald’s to get something to eat, then returned to the Garnet Street house. J.R. fell asleep a short time later. Mr. Bellegarde and Mr. Theodore went down to the basement and cut up Mr. Lee’s body.

[22] Mr. Lee’s body parts were put into a hockey bag, which was loaded into J.R.’s vehicle. Mr. Bellegarde suggested they drive toStar Blanket First Nation, where he grew up, to dispose of the body. On the way out of Regina, shortly before 7:30 a.m., they stopped at ahardware store. Mr. Theodore gave J.R. money and instructed her to go into the store to purchase shovels. She did so. The three of themthen drove to Star Blanket First Nation and disposed of a number of items, including the saw that had been used to dismember Mr. Lee’sbody, in a slough. After that, they found a suitable location to dispose of Mr.

Lee’s remains. Mr. Bellegarde and Mr. Theodore thenchanged clothes and threw out what they had been wearing. [23] J.R., Mr. Bellegarde and Mr. Theodore drove back to Regina, arriving shortly after noon. Mr. Theodore instructed J.R. to cleanthe vehicle at a carwash. From there, they drove to Mr. Gordon’s apartment. Mr. Gordon gave Mr. Bellegarde a television andapproximately $200 in cash. [24] When D.B. and K.A. returned to the Garnet Street house, they found blood and mud everywhere. K.A. complained to Mr.Gordon. He told her to calm down and gave her money to purchase cleaning products.

While cleaning the basement, K.A. found a sawed-off shotgun in the dryer and a shell casing in the basement. Mr. Gordon instructed her to give those to Mr. Theodore. [25] At trial, the Crown’s theory was that Mr. Gordon, Mr. Theodore and Mr. Bellegarde were guilty of first degree murder becausethey all participated in a plan set Mr. Lee up, rob him and kill him. In broad terms, the Crown asserted that Mr. Gordon had crafted anddirected the plan, while Mr. Theodore and Mr. Bellegarde had been responsible for its implementation. The Crown said the television andcash that Mr. Gordon gave to Mr.

Bellegarde was payment for his role in the killing. The Crown also argued that all three could alsoproperly be found guilty of first degree murder on the basis that they murdered Mr. Lee while unlawfully confining him. [26] Mr. Gordon was the only one of the three appellants to testify at trial. He said he was unaware of, and did not participate in, anyplan to lure, confine, abduct or kill Mr. Lee. He testified that he thought he was simply meeting Mr. Lee for the purpose of conducting adrug transaction.

He said that once he realized the other people at his apartment may be involved in something more nefarious, he orderedthem to leave and had no more involvement with the situation. [27] After a five-week long trial, a jury found all three of the appellants guilty of first degree murder, and Mr. Theodore and Mr.Bellegarde guilty of offering an indignity to Mr. Lee’s remains. III. THE APPEALS [28] The appellants were charged and tried jointly, but they have all appealed separately and each raise different grounds of appeal. Iwill, therefore, deal with each of their appeals individually. A.

The Appeal of Daniel Theodore [29] Mr. Theodore’s appeal focuses on the issue of racial bias. He contends that there was reason to believe the jurors who wereassembled to try the case were generally biased against or held stereotypical beliefs about Indigenous persons and their involvement inviolent crimes. Mr. Theodore, himself, is Caucasian. Mr. Bellegarde and Mr. Gordon are Indigenous, as was Mr. Lee. 1. The arguments [30] Mr. Theodore asserts that the impact of racial bias on his trial gives rise to three grounds of appeal.

First, he argues that the trialjudge erred in law by not questioning prospective jurors about racial bias during the pre-screening stage of jury selection. He says s.632(

c) of the Criminal Code permits trial judges to engage in such questioning in cases where the prospect of racial bias is obvious, andthe trial judge should have recognized that this was such a case. [31] Second, Mr. Theodore says the trial judge’s failure to properly address the issue of racial bias violated his right to a fair trial byan impartial jury, as guaranteed by s. 11(

d) of the Charter. [32] Third, Mr. Theodore argues that there were a number of “irregularities” in the trial, namely (

i) the trial judge’s failure to screenpotential jurors for partiality on the basis of race; (ii) the trial judge’s failure to provide adequate instruction to the jury regarding racialstereotypes, bias and prejudice; and (iii) the failure of Crown and defence counsel to apply to challenge jurors for cause on the basis ofracial bias. The combined effect of these irregularities, contends Mr. Theodore, was a miscarriage of justice. 2. The factual underpinning of Mr. Theodore’s arguments [33] Even though Mr.

Theodore is not Indigenous, he asserts that racism is so widespread and pervasive in Saskatchewan that thereexisted an “air of reality” that jurors would be biased against his co-accused because they are Indigenous. He says this, coupled with thenature and circumstances of the crimes of which he was accused – a gruesome killing connected to a drug enterprise involving members(or alleged members) of an Indigenous street gang – required that appropriate steps be taken to ensure that matters of race did not play arole in the outcome of the trial. [34] As a starting proposition, Mr.

Theodore submits that there is no room for debate about whether there is prejudice in thecommunity against Indigenous persons. Citing such decisions as R v Williams, (SCC), [1998] 1 SCR 1128 [Williams],and R v Stanley, 2019 SKQB 277, among others, he says the trial judge should have taken judicial notice of that fact. [35] Mr. Theodore also notes that the involvement of the relevant parties with Indigenous street gangs was a central theme in thecase. The Crown’s theory of the case was that Mr. Gordon was a drug supplier for the Indian Mafia and that Mr.

Bellegarde earned his“patch” with the gang through his participation in the murder of Mr. Lee. The evidence, the submissions of counsel, and the trial judge’sfinal instructions to the jury were replete with references to Indigenous gangs.

[ 36 ] In addition, Mr. Theodore points to three things that occurred during the course of the trial which he says demonstrated a realistic potential that jurors may have held biased views regarding Indigenous persons. He says the failure to take appropriate steps to identify and counter such biases affected the fairness of the trial. [ 37 ] First, during jury selection, when engaging in pre-screening of jurors under s. 632 of the Criminal Code , the trial judge informed prospective jurors of the bases upon which they were either disqualified from jury duty or upon which they could properly ask to be excused.

She advised prospective jurors that “[e]very juror…must be impartial” and “must approach the trial with an open mind and without preconceived ideas”. She then listed the categories that may call impartiality into question, including association with anyone involved in the case, personal knowledge of the circumstances, and having been accused of an “offence of this nature or …otherwise … involved in a similar offence or … a similar experience.” As pre-screening unfolded, one prospective juror brought forward a concern respecting the latter category.

She advised the trial judge that her cousin had been beaten, abducted and robbed by an Indigenous person a few years previously and, as a result, she did not feel she would be an appropriate juror. Counsel agreed that this person should be excused, and the trial judge excused her. [ 38 ] Second, after jury selection was complete, one of the jurors who had been selected (identified as juror #525) raised a concern.

By way of a letter delivered through the Sheriff, juror #525 reported that her husband’s employment involved, among other things, preparing ceremonial feasts for people on various First Nations, including one which sits adjacent to Star Blanket First Nation. Through having attended such events with her husband, juror #525 had met members of Mr. Bellegarde’s family and, as a result, did not feel she could be impartial. The trial judge advised counsel of this in open court.

All parties agreed that juror #525 should be discharged and a replacement juror was chosen. [ 39 ] Third, while the trial was underway, one of the jurors made the court aware of a telephone call that his parents had received. The call appeared to have originated from a telephone on Star Blanket First Nation. The juror’s father had not actually answered the call, but simply noticed the number and caller identifier as a “missed call” on his telephone. Concerned that there might be a possible connection to the trial, the juror reported the matter to the Sheriff who, in turn, reported it to the trial judge.

The trial judge instructed the Sheriff to communicate with the Regina Police Service to investigate where the call had come from. It was determined that the number in question belonged to a telephone located at the Star Blanket First Nation Band Office. This telephone was one that was available for use not only by employees of the Band Office, but members of the public as well. [ 40 ] After discussing the matter with counsel, the trial judge brought the juror into court, in the absence of the other jurors, and asked him to provide more detail.

The juror advised that he had not shared any information regarding the call with other jurors. He also said that, although his father was uneasy about having received the call, he had no concerns about his own ability to continue to sit as a juror. Following this, counsel for Mr. Bellegarde and Mr. Gordon both indicated that they had no concerns with the juror continuing to sit. Crown counsel took the same view. [ 41 ] Counsel for Mr. Theodore, however, took issue.

He argued that an occurrence such as this – a juror’s parent expressing concern about having received a telephone call from a number, unknown to him and associated to Star Blanket First Nation, in the midst of a trial where many of the relevant events involved persons and places associated to that community - may well have an impact on that juror’s ability to be impartial and that there was a concern that he may eventually share the information with other jurors. As such, he said, the juror “must be excluded to ensure trial fairness”. The trial judge agreed and discharged the juror. 3.

Analysis [ 42 ] I turn now to consider Mr. Theodore’s arguments. a. Did the trial judge err in law by not questioning prospective jurors about racial bias during the pre-screening stage of jury selection? [ 43 ]

Section 632 of the Criminal Code gives trial judges the power to pre-screen and excuse persons who, for various reasons, are not appropriate candidates to serve as jurors in a particular case. It reads as follows: 632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or any challenge has been made in relation to the juror, for reasons of (

a) personal interest in the matter to be tried; (

b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or (

c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused. [ 44 ] Mr. Theodore takes the position that the words “or any other reasonable cause” in s. 632 (

c) give trial judges wide-ranging power to pre-screen and identify jurors who may be biased against accused persons on the basis of race. Relying on R v Bitternose, 2009 SKCA 54 , 244 CCC (3d) 218 [ Bitternose ] , he says it was an error for the trial judge not to have used that power in this case. As I will explain, I reject this argument. [ 45 ] In Bitternose , the accused was an Indigenous man facing a charge of first degree murder. He was not represented at trial but had been represented by counsel during proceedings leading up to trial. The trial judge, of his own motion, did what Mr.

Theodore suggests that the trial judge should have done in this case. That is, he asked all prospective jurors who felt they were biased against Indigenous persons to identify themselves during s. 632 (

c) pre-screening. [ 46 ] Mr. Bitternose was convicted at trial and appealed his conviction to this Court. One of his grounds of appeal was that the trial judge had not adequately explained to him that he had the ability to apply to challenge jurors for cause under s. 638. This Court dismissed Mr. Bitternose’s appeal, holding that he had been adequately informed, both when he was represented by counsel and after he had

discharged counsel, about the challenge for cause procedure. [47] The question of whether the trial judge’s inquiries of prospective jurors regarding racial bias during the pre-screening wereproper, or even legally permissible, was not before this Court in Bitternose. Accordingly, I do not take the decision as an endorsement ofthe trial judge’s approach in that case.

In fact, as I will demonstrate, the type of inquiries that the trial judge made in Bitternose are notpermitted by s. 632(c). [48] It is fair to say that trial judges “must be cognizant of the well-established and undisputed fact that racial prejudice can lead to arisk of empaneling jurors who will not give a racialized accused a fair trial” (R v Chouhan, 2020 ONCA 40 at para 64, 384 CCC (3d) 215[Chouhan ONCA] (reversed on other grounds, (SCC)), see also R v Parks, (1993), (ON CA), 84CCC (3d) 353 (Ont CA), leave to appeal refused, [1993] SCCA No. 481; and Williams).

But it does not follow that the pre-screeningprocess in s. 632 is the appropriate vehicle for trial judges to use in order to address concerns over racial bias on the part of jurors. [49]

Section 632 permits a presiding judge, at any time before the commencement of the trial, before or after a prospective juror’scard has been selected by the registrar, or before the juror has been challenged, to excuse that person for the reasons listed in the section.Such reasons include the situations of obvious partiality referred to in subsections (

a) and (b), as well as “personal hardship or any otherreasonable cause, that, in the opinion of the judge” warrants excusing the juror, as provided in subsection (c). This

section does not,however, expand a trial judge’s ability to decide controversial questions of juror partiality (R v Hazlett (2005), (ONCA), 205 OAC 298 at para 3 (Ont CA)). Nothing in s. 632(

c) provides a trial judge with the authority to question jurors in open courtabout personal matters so as to identify potentially biased jurors. In R v B.(A.) (1997), (ON CA), 115 CCC (3d) 421(Ont CA) at para 95 [B.(A.)], Moldaver J.A. (as he then was) described the reach of s. 632 as follows: [95] Under s. 632, trial judges are empowered to excuse prospective jurors for matters of obvious partiality referred to in subsections(

a) and (b). In addition, s. 632(

c) provides trial judges with a residual discretion to excuse prospective jurors for “any other reasonablecause”. In my view, the words "any other reasonable cause" are wide enough to include matters of obvious partiality not mentionedspecifically in subsections (

a) and (b). To the extent, however, that the alleged ground of partiality is not obvious, then, if the matter is tobe pursued, recourse must be had to s. 638(1)(

b) of the Code and the principles which govern its application. (Emphasis added) [50] The direction that Moldaver J.A. gave respecting the need for “other reasonable cause” as referred to in s. 632(

c) to be a matterthat is “obvious” was further explained by McLachlin C.J. in R v Find, 2001 SCC 32, [2001] 1 SCR 863 [Find]: [22] Members of the jury pool may be excluded from the jury in two ways during the empanelling process. First, the trial judge enjoysa limited preliminary power to excuse prospective jurors. This is referred to as “judicial pre-screening” of the jury array. At common law,the trial judge was empowered to ask general questions of the panel to uncover manifest bias or personal hardship, and to excuse aprospective juror on either ground.

Today in Canada, the judge typically raises these issues in his remarks to the panel, at which pointthose in the pool who may have difficulties are invited to identify themselves. If satisfied that a member of the jury pool should not serveeither for reasons of manifest bias or hardship, the trial judge may excuse that person from jury service. [23] Judicial pre-screening at common law developed as a

summary procedure for expediting jury selection where the prospectivejuror’s partiality was uncontroversial, such as where he or she had an interest in the proceedings or was a relative of a witness or theaccused: Barrow, supra, at p. 709. The consent of both parties to the judicial pre-screening was presumed, provided the reason fordischarge was “manifest” or obvious. Otherwise, the challenge for cause procedure applied: Sherratt, supra, at p. 534. In 1992, s. 632 ofthe Criminal Code was enacted to address judicial pre-screening of the jury panel.

This provision allows the judge, at any time before thetrial commences, to excuse a prospective juror for personal interest, relationship with the judge, counsel, accused or prospective witnesses,or personal hardship or other reasonable cause. [24] The second way members of the jury may be excluded during the empanelling process is upon a challenge of the prospective jurorby the Crown or the accused… [25] One ground for challenge for cause is that a prospective juror is “not indifferent between the Queen and the accused”: CriminalCode, s. 638(1)(b).

If the judge is satisfied that a realistic potential for juror partiality exists, he or she may permit the requestedchallenges for cause… (Emphasis added) [51] Together, B.(A.) and Find support the understanding that a trial judge’s ability to excuse jurors on a pre-screening basis islimited to clear-cut cases of partiality in which the consent of counsel to the removal of the juror can be presumed. As these passages makeclear, the pre-screening process under s. 632(

c) and the challenge for cause procedure under s. 638(1)(

b) are qualitatively different. Pre-screening questions by the judge are meant to deal with circumstances in which the juror is unquestionably not suited to hear the case.Section 632(

c) is not a substitute for the challenge for cause procedure in s. 638 and nor can it be used to circumvent the thresholdrequired to challenge jurors for cause (R v Sherratt, (SCC), [1991] 1 SCR 509 at 533-34 [Sherratt]; Chouhan ONCA, atpara 68)). One reason for this is that even though the risk of racial prejudice cannot be ignored, neither can it be presumed that jurors willbe biased on that basis.

To the contrary, it is presumed that jurors will carry out their duty without bias or partiality, as Binnie J. describedin R v Spence, 2005 SCC 71, [2005] 3 SCR 458 [Spence]: [21] Our criminal law is premised on the ability of 12 jurors to do their job with “indifference” as between the Crown and the accused.We do not start with the idea that it is up to the potential juror to demonstrate his or her impartiality. Our procedures in this respect differfrom the American approach. In this country, people called for jury duty benefit from a presumption that they will do their duty withoutbias or partiality: R. v.

Vermette, (SCC), [1988] 1 S.C.R. 985; Hubbert v. The Queen, (SCC), [1977] 2S.C.R. 267; R. v. Corbett, (SCC), [1988] 1 S.C.R. 670. [52] The questioning of jurors in open court regarding their personal beliefs and biases is only permitted when this presumption isrebutted. Rebutting the presumption of impartiality on the basis of grounds other than the obvious ones specifically enumerated in s. 632

requires meeting the standard necessary to challenge for cause, as explained in Find : [26 ] Th e Canadian system … starts from the presumption that jurors are capable of setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge on their duties.

This presumption is displaced only where potential bias is either clear and obvious (addressed by judicial pre-screening), or where the accused or prosecution shows reason to suspect that members of the jury array may possess biases that cannot be set aside (addressed by the challenge for cause process) … (Emphasis added) [ 53 ] A challenge for cause on the question of partiality related to bias will properly be permitted where the applicant demonstrates “on a ground sufficiently articulated in the application” there is in the case of some potential jurors a “realistic potential for ... partiality” ( Sherratt , at 536; Spence at para 23 ).

This standard may be met by demonstrating that a widespread bias of a particular type exists in the community and that, despite trial safeguards, some jurors may be incapable of setting aside this bias in order to render an impartial decision. While this does not necessarily entail meeting an onerous evidentiary standard, the presumption of juror impartiality is not automatically rebutted by the mere fact that matters of race are involved ( Spence , at para 24 ).

In fact, in Williams , the Supreme Court specifically rejected the notion that there is an automatic right to challenge for cause o n the basis that the accused is Indigenous or a member of another group that encounters discrimination (at para 41) . [ 54 ] In light of all this, I cannot agree with Mr. Theodore’s submission that the trial judge was required, or even permitted, by s. 632(

c) to question jurors about racial bias as part of the pre-screening process. If there is no automatic right to challenge for cause on the basis of non-impartiality due to racial bias simply because an accused person is Indigenous or a member of another disadvantaged group, it necessarily follows that the existence of such non-impartiality is not so obvious as to constitute “other reasonable cause” within the meaning of s. 632(c). As such, the fact that the trial judge did not ask pre-screening questions of prospective jurors relating to racial bias does not constitute legal error. b.

Did the failure to address racial bias in the jury selection process or through proper jury instruction violate Mr. Theodore’s rights under s. 11(

d) of the Charter? [ 55 ]

Section 11(

d) of the Charter guarantees, for persons charged with an offence, the presumption of innocence and the right to “a fair and public hearing by an independent and impartial tribunal.” To state the obvious, in the case of a jury trial, that means jurors must be impartial. [ 56 ] Mr. Theodore argues that, in light of the undeniable existence of widespread prejudice in Saskatchewan against Indigenous persons and the particular circumstances of the offences he was alleged to have committed, there existed a realistic potential that some members of the jury in his case may not have been impartial.

He says the trial judge’s failure to adequately address the question of racial bias in the jury selection process and her failure to explicitly instruct the jurors to set aside any prejudice or bias they may have had towards Indigenous persons gives rise to a reasonable apprehension that the jurors who decided his case were biased. As such, he says, his rights under s. 11(

d) of the Charter were violated and the appropriate remedy is a new trial. [ 57 ] Mr. Theodore makes this argument notwithstanding the fact that, at trial, neither he nor his co-accused applied to challenge jurors for cause on the basis of racial bias or requested any specific instructions from the trial judge in that regard. Nor did he or his co- accused raise any other concern whatsoever about the impartiality of the jury. Mr.

Theodore submits, however, that in light of the Supreme Court of Canada’s decisions in Williams and R v Barton, 2019 SCC 33 , 435 DLR (4th) 191 [ Barton ], it was not necessary for them to have done so. He says the effect of those decisions is that the responsibility of ensuring that racial bias does not affect the fairness of the trial falls squarely on the shoulders of trial judges, especially in cases where Indigenous persons are charged with violent offences.

He argues that the trial judge failed to discharge that responsibility in this case. [ 58 ] I would also not give effect to this argument. [ 59 ] A jury deciding a criminal case must, of course, be impartial. In the context of s. 11(d), “to determine whether a tribunal is impartial the question is whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias” ( R v Kokopenace, 2015 SCC 28 at para 49 , [2015] 2 SCR 398; Chouhan ONCA at para 62 ). [ 60 ] The possibility of widespread racial prejudice is especially problematic in this context.

It introduces the risk that prejudiced jurors will be empaneled and that they will not decide the case fairly and impartially ( Chouhan ONCA at paras 64–65 , Williams at paras 21–31 , Parks at 369). But the existence of widespread racial prejudice does not mean an apprehension of bias will necessarily exist just because a person on trial is a member of a minority or disadvantaged group.

There are several reasons for this, including the aforementioned presumption of juror impartiality, the safeguards in the jury selection process designed to weed out potentially biased candidates (such as the challenge for cause procedure in s. 638(1) (

b) of the Criminal Code ), and the requirement for trial judges to give proper instructions to the jury ( Chouhan ONCA at paras 62, 66–72 ). [ 61 ] In Chouhan ONCA , the Ontario Court of Appeal observed that, in applying the test for impartiality, courts must be cognizant of the “well-established and undisputed risk” (at para 65) that racial prejudice can influence the judgement of jurors and bring into question their ability to decide a case fairly, but also noted that the presumption of juror impartiality is strong and not easily displaced.

In that regard, Watt J.A. wrote: [92] We recognize a strong presumption of juror impartiality. And we require cogent evidence, not conjecture or speculation, to rebut it. It is not rebutted by the existence of racism in society as a whole, nor by a determination that prospective jurors may be challenged for cause… [ 62 ] In this case, even accepting for the sake of argument the premise that wide-spread prejudice against Indigenous persons exists in Saskatchewan, there is no basis to conclude that Mr. Theodore’s s. 11(

d) rights were violated.

[63] As a starting point, let me observe that, unlike the accused in Williams, Mr. Theodore did not apply to challenge any of theprospective jurors for cause on the basis of racial bias. Further, neither he nor his co-accused raised any concern about the prospect ofwidespread prejudice against Indigenous persons during the jury selection process, or at any other time during the trial. Nor did any ofthem suggest that racial bias was a matter the trial judge ought to address in her opening, mid-trial, or final instructions to the jury. [64] This alone is fatal to Mr. Theodore’s s. 11(

d) argument. There is clear authority for the proposition that the failure to raise thequestion of an apprehension of bias and take issue with prospective jurors by challenging them for cause at trial precludes an appellantfrom challenging the jury’s impartiality for the first time on appeal (R v Lavallee, 2001 SKCA 43 at paras 9–10, 153 CCC (3d) 120; R v R.(R.) (1994), (ON CA), 91 CCC (3d) 193 at para 18 (Ont CA)). To put it succinctly, Mr.

Theodore, having chosen not touse the tools that the law provides to weed out potentially biased jurors at his trial, cannot now complain that there was a reasonableapprehension of bias because those tools were not employed. [65] Moreover, I do not agree with Mr.

Theodore’s contention that the Supreme Court of Canada’s decision in Barton has, in effect,imposed a requirement upon trial judges to provide a special instruction to jurors regarding the need to set aside racial prejudices in allcases involving an Indigenous person charged with committing a violent offence. [66] In Barton, the accused, a Caucasian man, was charged with first degree murder of an Indigenous woman who was a sexworker. The Crown’s theory of the case was that Mr. Barton was guilty of first degree murder because he murdered the victim whilesexually assaulting her. Mr.

Barton admitted that he caused the injury that led to the victim’s death, but said he accidentally inflicted thatinjury during the course of consensual sexual activity. The jury found Mr. Barton not guilty of both first degree murder and the includedoffence of unlawful act manslaughter. The Crown appealed the acquittal. The Alberta Court of Appeal allowed the appeal, set aside theacquittal and ordered a new trial on the charge of first degree murder.

In doing so, the Court identified a number of problems in the trialjudge’s instructions to the jury and expressed concern that nationally used pattern jury charges on sexual offences contribute to stereotypesand exacerbate inequality in sexual assault cases. [67] Mr. Barton appealed to the Supreme Court of Canada. The Supreme Court allowed his appeal in part, remitting the matter fortrial only on the included offence of unlawful act manslaughter.

In doing so, the Court (Moldaver J. writing for the majority) took theopportunity to provide instructional comments on a number of issues that it observed may be useful “for the purpose of promoting greaterclarity in the law and providing guidance for future cases” (at para 179). [68] One such issue fell under the heading “Instructions Addressing Prejudice Against Indigenous Women and Girls in SexualAssault Cases”.

In this section, Justice Moldaver wrote: [195] When jurors are sworn and empanelled, Canadian society tasks them with a weighty responsibility: deciding whether, on theevidence put before them, the accused is guilty or not. This task is not easy — it requires patience, judgment, and careful analysis. Butmost of all, it requires an open mind, one that is free from bias, prejudice, or sympathy. [196] But it would be naïve to assume that the moment the jurors enter the courtroom, they leave their biases, prejudices, andsympathies behind. That reality was openly acknowledged in R. v.

Williams, (SCC), [1998] 1 S.C.R. 1128, where thisCourt discussed the “invasive”, “elusive”, and “corrosive” nature of one particular type of bias: racism against Indigenous persons (para.22). Justice McLachlin (as she then was) emphasized that “[t]o suggest that all persons who possess racial prejudices will erase thoseprejudices from the mind when serving as jurors is to underestimate the insidious nature of racial prejudice and the stereotyping thatunderlies it” (para. 21). [197] Trial judges, as gatekeepers, play an important role in keeping biases, prejudices, and stereotypes out of the courtroom.

In thisregard, one of the main tools trial judges have at their disposal is the ability to provide instructions to the jury. Bearing in mind thisCourt’s admonition that “it cannot be assumed that judicial directions to act impartially will always effectively counter racial prejudice”(Williams, at para. 21), such instructions can in my view play a role in exposing biases, prejudices, and stereotypes and encouraging jurorsto discharge their duties fairly and impartially.

In particular, a carefully crafted instruction can expose biases, prejudices, and stereotypesthat lurk beneath the surface, thereby allowing all justice system participants to address them head-on — openly, honestly, and withoutfear. [198] Trials do not take place in a historical, cultural, or social vacuum. Indigenous persons have suffered a long history of colonialism,the effects of which continue to be felt. There is no denying that Indigenous people — and in particular Indigenous women, girls, and sexworkers — have endured serious injustices, including high rates of sexual violence against women.

The ongoing work of the NationalInquiry into Missing and Murdered Indigenous Women and Girls is just one reminder of that painful reality (see Interim Report, OurWomen and Girls Are Sacred (2017)). [199] Furthermore, this Court has acknowledged on several occasions the detrimental effects of widespread racism against Indigenouspeople within our criminal justice system (see e.g., Williams, at paras. 54 and 58; R. v. Gladue, (SCC), [1999] 1 S.C.R.688, at para. 65; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 59-60 and 67; Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R.165, at para. 57).

For example, in Williams, this Court recognized that Indigenous people are the target of hurtful biases, stereotypes, andassumptions, including stereotypes about credibility, worthiness, and criminal propensity, to name just a few (para. 28). Moreover,in Ewert, this Court stressed that “discrimination experienced by Indigenous persons, whether as a result of overtly racist attitudes orculturally inappropriate practices, extends to all parts of the criminal justice system, including the prison system” (para. 57).

In short, whenit comes to truth and reconciliation from a criminal justice system perspective, much-needed work remains to be done. [200] With this in mind, in my view, our criminal justice system and all participants within it should take reasonable steps to addresssystemic biases, prejudices, and stereotypes against Indigenous persons — and in particular Indigenous women and sex workers — head-on. Turning a blind eye to these biases, prejudices, and stereotypes is not an answer.

Accordingly, as an additional safeguard goingforward, in sexual assault cases where the complainant is an Indigenous woman or girl, trial judges would be well advised to provide anexpress instruction aimed at countering prejudice against Indigenous women and girls. This instruction would go beyond a more genericinstruction to reason impartially and without sympathy or prejudice.

… [203] With regard to trial fairness, it is worth emphasizing that any instruction given must not privilege the rights of the complainant over those of the accused.

The objective would instead be to identify specific biases, prejudices, and stereotypes that may reasonably be expected to arise in the particular case and attempt to remove them from the jury’s deliberative process in a fair, balanced way, without prejudicing the accused. [204] In sum, to better ensure Indigenous women and girls receive the full protection and benefit of the law in sexual assault cases, our criminal justice system should take reasonable steps to address biases, prejudices, and stereotypes against Indigenous women and girls openly, honestly, and without fear.

While the type of instruction identified above is by no means a perfect solution to ridding our courts — and Canadian society more broadly — of biases, prejudices, and stereotypes against Indigenous women and girls, it represents a step forward. (Emphasis added) [ 69 ] While much can be taken from these comments in Barton , including the recognition that trial judges must be keenly aware of the possibility that jurors may be subject to racial bias and that appropriate instructions are an important safeguard to address such bias, I read the comments as having been made with a specific context in mind: combating stereotypical thinking in cases involving sexual offences committed against Indigenous women and girls.

Mr. Theodore has failed to persuasively explain how the case against him could have been infected by similar stereotypical thinking. [ 70 ] I also do not read Barton as imposing a requirement that, in every case involving an Indigenous accused, the trial judge must provide a special and focused instruction to jurors about setting aside racial bias, especially where counsel do not raise it as an issue. Instead, a trial judge’s instructions to the jury must be responsive to the circumstances and context of the trial in which they are given.

Instructions must be fair and balanced, and care must be taken to not favour or prejudice the rights of the accused, or prefer one accused over another in a multi-accused joint trial. I am satisfied that the trial judge’s instructions in this case meet this threshold. [ 71 ] The trial judge’s opening instructions to the jury included an admonition to decide the case only on the evidence and to “not be influenced by sympathy or prejudice for or against any person”. They also included instruction regarding bad conduct evidence, advising the jurors they would hear evidence about Messrs.

Theodore, Bellegarde and Gordon using drugs, selling drugs, being involved with or associated with gangs and weapons, and being in jail. The trial judge instructed the jurors that they “must not assume that Andrew Bellegarde or Bronson Gordon or Daniel Theodore is guilty of the offence...just because…[they] may have engaged in other bad conduct in the past”. Finally, at the conclusion of her opening instructions, the trial judge reminded the jurors that they “must listen to and observe these trial proceedings without prejudice, bias or sympathy” and that they had a duty to be fair and impartial.

None of the appellants took issue with these instructions or suggested that an enhanced or more specific instruction was required. [ 72 ] In her final instructions, the trial judge again told the jurors that they were required to make their decision “on a rational and fair consideration of all the evidence, and not on passion, or sympathy, or prejudice against the accused, the Crown, or anyone else connected with the case”. These final instructions were the product of much discussion and consultation between counsel and the trial judge.

None of the appellants asked for any special instruction regarding racial bias prior to the instructions being provided to the jury, and none took any exception or raised any concern about the absence of special instruction after the charge to the jury was complete.

Furthermore, the instructions the trial judge actually gave in that respect were consistent with the nature of the instructions given by the trial judge in Barton , which Moldaver J. found to be adequate (at paras 176–177), notwithstanding the “additional layer of protection” that could provided by the instructions he referred to at paras 195–204. [ 73 ] In my view, there is nothing in the record or the circumstances of this case that suggests it should have been apparent to the trial judge that she was required to take additional steps or to give the jury any special instructions relating to racial bias or prejudice.

The factual reality was that two of the appellants were Indigenous and one, Mr. Theodore, was non-Indigenous. The victim, Mr. Lee, was also Indigenous. The appellants were charged with very serious and violent crimes. But none of them, including Mr. Theodore, raised the issue of racial bias on the record at any time before or during the trial. None of them sought to challenge the impartiality of prospective jurors on that – or any other – basis.

None of them asked the trial judge for special instruction of that nature and none took exception at trial with the instructions she gave in that respect. [ 74 ] Moreover, I do not agree with Mr. Theodore’s submission that events that occurred during the trial required the judge to take further steps at the jury selection stage or provide special instruction to jurors regarding prejudice against Indigenous persons absent a request from counsel. During the jury selection process, only three prospective jurors raised anything that could be seen as even remotely connected to race.

In that regard, two members of the jury pool identified themselves as members of a motorcycle gang and said that, because of their beliefs, they were inherently biased (although neither of them linked their biases to race). Both were excused. Then there was the person who said her cousin had been abducted, beaten and robbed by an Indigenous person. She was also excused. This was the sum total, from a very large pool of potential jurors, of any concerns of that sort being raised. [ 75 ] The other incidents that Mr.

Theodore identifies provide no support for the suggestion that the trial judge should have been compelled, without a request from counsel, to provide special instruction to the jurors regarding racial bias. Juror #525 raised an issue regarding her own impartiality because her husband prepares ceremonial feasts for various First Nations and, having accompanied him to some of those events, she had met members of Mr. Bellegarde’s family. As a result, she did not feel that she could be impartial.

From the record, it is clear that Juror #525’s concern as to the propriety of her remaining on the jury was rooted in the fact that she had socialized with members of Mr. Bellegarde’s family. It had nothing to do with race. [ 76 ] It is equally apparent from the record that the phone call from Star Blanket First Nation was of concern to the trial judge because of its timing and factual context, not because of anything to do with race. The call came on the heels of a day on which the jury had heard a significant amount of evidence about the disposal of Mr. Lee’s body.

Of course, those events took place on Star Blanket First Nation, which happened to be Mr. Bellegarde’s home community. Considered in context, it is apparent that the trial judge’s concern was not that the call had originated on a First Nation, but rather that the call came from a telephone associated to the community directly implicated in that day’s evidence, which happened to be the home community of one of the accused. It is not surprising that the trial judge

felt the matter had to be investigated. It is also not surprising that nobody involved in the trial saw this event as having anything to do with race. The concern was about the timing and possible connection of the call to the circumstances of the trial, not about the fact that the call came from somewhere on a First Nation. [ 77 ] In my view, neither the occurrence of these events nor the fact that the trial judge did not take additional steps to address them, gives rise to a reasonable apprehension of bias.

Nor does a reasonable apprehension of bias arise from the mere fact that two of the three appellants are Indigenous and were on trial for committing violent offences. [ 78 ] In the end, the onus is on Mr. Theodore to demonstrate that there was a violation of his rights under s. 11(

d) of the Charter . He has not done so. I would reject this ground of appeal. c. Did the “irregularities” in the trial result in a miscarriage of justice? [ 79 ] Section 686(1)(a)(iii) of the Criminal Code permits this Court to allow an appeal from conviction where it is of the opinion that “on any ground there was a miscarriage of justice.” Here, Mr.

Theodore contends that certain irregularities rendered his trial unfair or, at the very least created the appearance of unfairness, meaning that his conviction was a miscarriage of justice. [ 80 ] Miscarriage of justice is a “flexible term which comprehends a range of situations” ( R v Moosomin, 2008 SKCA 168 at para 25 , 239 CCC (3d) 326 [ Moosomin ] ) . Where an accused person alleges a miscarriage of justice, he or she bears the burden of demonstrating his or her entitlement to a new trial on that basis ( Moosomin at para 27 ).

This does not necessarily require demonstrating legal error on the part of the trial judge; a miscarriage of justice can result from any irregularity or combination of irregularities that is severe enough to render the trial unfair or create the appearance of unfairness ( R v Davey, 2012 SCC 75 at paras 50 ​51, [2012] 3 SCR 828 ; R v Khan, 2001 SCC 86 at para 69 , [2001] 3 SCR 823 [ Khan ] ). [ 81 ] This does not mean that a trial needs to be perfect. The trial cannot be held to a standard of perfection, provided it remains fair in reality and in appearance ( Khan at para 72 ).

The test under s. 686(1)(a)(iii) requires that an appeal court examine whether a well- informed, reasonable person, considering the whole of the circumstances would have perceived the trial as unfair or appearing to be so ( R v Rogal, 2018 SKCA 18 at para 49 , 410 CRR (2d) 248). [ 82 ] I reject Mr. Theodore’s argument on this front as well.

In my view none of the things he identifies as irregularities can properly be called that and none of them, alone or in combination, rendered the trial unfair in either reality or appearance. [ 83 ] With respect to the first alleged irregularity, I have determined that the trial judge made no error by not pre-screening potential jurors for partiality on the basis of race, because s. 632 (

c) of the Criminal Code grants no authority to do so. Trial judges have no inherent authority to modify the codified procedure for jury selection, even where it may seem expeditious to do so ( R v W.V., 2007 ONCA 546 at paras 21–22 ). The fact that the trial judge acted in accordance with the law cannot be an irregularity. [ 84 ] The second alleged irregularity, according to Mr. Theodore, is that the trial judge failed to provide adequate instruction to the jury about the need to set aside racial stereotypes, bias and prejudice. In order to succeed in this argument, Mr.

Theodore would need to demonstrate that such instruction was required, so that its absence could properly be characterized as an irregularity. As already discussed, the jurisprudence does not support Mr. Theodore’s contention that such an instruction was required just because his co-accused were Indigenous and were charged with committing violent offences. In my view, there is nothing in the trial record to demonstrate that something occurred to make such an instruction necessary.

Nor is there anything in the record to demonstrate that any of the parties believed that potential racial bias, prejudice or stereotypes were an obstacle to an impartial verdict. None of the appellants sought to challenge prospective jurors for cause on the basis of racial bias, none sought any particular instruction in that respect from the trial judge at the outset or during the trial and, despite having had the opportunity to vet the trial judge’s final instructions to the jury, none requested that she give a special instruction to that effect or raised any objection when she did not.

Accordingly, I see no irregularity here, either. [ 85 ] Finally, with respect to the third leg of Mr. Theodores’s argument under this heading, I am also not persuaded that the “failure” of the participants at trial to engage the challenge for cause provisions of the Criminal Code amounts to an irregularity. [ 86 ] In this respect, it is important to bear in mind that all of the appellants, including Mr. Theodore, were represented by experienced counsel at trial. As a matter of law, the competence of counsel is strongly presumed (see: R v Kim, 2011 SKCA 74 at para 36 , 272 CCC (3d) 15 ) and neither Mr.

Theodore nor his co-appellants have raised any argument to challenge that presumption. Competent counsel must be taken as having been aware of the availability of the challenge for cause provisions of the Criminal Code . Mr. Theodore has not applied to lead fresh evidence, and nor is there anything else in the record to suggest that his decision to not apply to challenge prospective jurors for cause was an irregularity, as opposed to a conscious choice on his part. [ 87 ] Moreover, neither of Mr. Theodore’s co-accused were under any obligation to apply to challenge jurors for cause.

They were entitled to defend themselves as they saw fit. Their decision not to engage the challenge for cause provisions cannot be seen as an irregularity. [ 88 ] Finally, even though the Crown has the ability under s. 638(1) to apply to challenge prospective jurors for cause on the basis of racial bias, it would be an improper stretch of both the Criminal Code and the jurisprudence to suggest that the Crown is required to do so simply because one or more accused person is a member of a particular race, especially where defence counsel have chosen not to do so.

Absent some basis to conclude that the Crown was motivated by an improper purpose, the fact that it did not apply to invoke the challenge for cause procedure is not an irregularity. [ 89 ] In the result, I am not persuaded that there were any irregularities at trial of the sort Mr. Theodore describes. Accordingly, he cannot demonstrate that he was prejudiced by these alleged irregularities.

As noted in Davey at paragraph 74 , “[w]here no actual prejudice has been demonstrated, in order to warrant a new trial the appearance of unfairness must be pronounced, such that it would be a serious interference with the administration of justice and offend the community’s sense of fair play and decency.” Nothing in what Mr. Theodore has advanced under the miscarriage of justice argument comes close to meeting that standard.

4. Conclusion [ 90 ] I would dismiss Mr. Theodore’s appeal. B. The Appeal of Andrew Bellegarde [ 91 ] Mr. Bellegarde advances two grounds of appeal. [ 92 ] First, he contends that the trial judge erred by permitting a key Crown witness, J.R., to testify remotely, by means of a video link, pursuant to s. 486.2(2) of the Criminal Code . Second, he contends that the trial judge’s final instructions to the jury were inadequate in a number of ways. [ 93 ] As I will explain, I am not persuaded that Mr. Bellegarde’s appeal should succeed on either ground. 1.

Did the trial judge err by permitting J.R. to testify remotely? a. The background [ 94 ] The Crown called J.R. as its final witness. She described her relationship with Mr. Lee and explained how he came to Regina to sell methamphetamine, how he came into contact with Mr. Gordon, how he was taken to Mr. Gordon’s apartment and what happened there. She also testified that she observed Mr. Theodore and Mr. Bellegarde participating in the confinement of Mr. Lee and in efforts to ascertain where Mr. Lee kept his money and drugs.

She said that she was at the Garnet Street house when she heard a gunshot and described the things she saw and heard Mr. Theodore and Mr. Bellegarde do and say after that. She also described how she assisted them in disposing of Mr. Lee’s remains, the other steps that were taken to conceal evidence, and the subsequent interactions she observed between Mr. Gordon and Mr. Bellegarde.

Suffice it to say that J.R. was a crucial witness for the Crown. [ 95 ] Prior to testifying, J.R. made an application, pursuant to s. 486.2(2) of the Criminal Code , to be permitted to testify from a remote location outside the courtroom. She was represented by her own counsel for this application. [ 96 ] A hearing was held, in the absence of the jury, during which J.R. testified and explained her reasons for seeking the order.

In general terms, she said that because of the nature of her association to the three accused, which stemmed from their mutual involvement in the world of gangs and drug trafficking, she feared being subjected to intimidation and violent reprisal if she were required to attend court to give her evidence in person. [ 97 ] The trial judge granted J.R.’s application and permitted her to testify from a remote location, by way of a video link.

She did so because she determined that an order permitting J.R. to testify remotely would “facilitate full and candid testimony and … would otherwise be in the proper administration of justice.” [ 98 ] Mr. Bellegarde argues that the trial judge erred in reaching this conclusion and, as a result, he should have a new trial. b. The arguments [ 99 ] Mr. Bellegarde acknowledges that the decision whether to permit a witness to testify remotely is discretionary, but he contends that the trial judge erred in the exercise of her discretion in this case by: (

i) determining that J.R.’s evidence was sufficient to rebut the “presumption” that the accused were entitled to have her testify in the courtroom, in the presence of themselves and the jury; and (ii) failing to thoroughly weigh and balance the factors listed in s. 486.2(3) of the Criminal Code or conduct an analysis of whether those factors would affect J.R.’s ability to provide full and candid testimony in the courtroom. [ 100 ] Behind both of Mr. Bellegarde’s arguments is the idea that the personal presence of a witness while testifying is crucial to the ability to make full answer and defence.

In this regard he says, first, that the ability to see and confront an accuser is vital to enabling the defence to effectively conduct cross-examination. Second, he says, the personal presence of witnesses is of particular importance in a jury trial, where the ability to observe demeanour is crucial to the credibility assessments jurors must make. The “general presumption” that a witness shall testify in person, he says, should not be overcome by mere anxiety, fear, inconvenience, personal preference, or the fact that the witness is testifying about a particularly violent crime. c.

The statutory framework and governing principles [ 101 ] Section 650(1) of the Criminal Code requires that an accused person, subject to certain exceptions not applicable to the immediate context, “shall be present in court during the whole of his or her trial.” This reflects the importance to the fairness of the criminal process of an accused person being present for and having direct knowledge of anything that transpires during the course of the trial that affects his or her vital interests. [ 102 ] The vital interests of an accused person are clearly implicated by the testimony of witnesses.

In a very general sense, this usually requires that any witness who testifies be present in the courtroom and that the accused person be able to see them. There are, however, exceptions to this. One such exception is contained in s. 486.2 of the Criminal Code , which, in some cases permits (and, in others, directs) trial judges to order that witnesses testify remotely or from behind a screen or other device that shields the accused person from their view. [ 103 ] Subsection (2) permits judges to order that testimony be given remotely in certain instances. It reads as follows: 486.2

(2) Despite

section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full

and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. [104] A witness accommodation order made under s. 486.2(2) involves an exercise of discretion on the part of a trial judge. As theplain language of the

section prescribes, before exercising that discretion in favour of making an order for remote or screened testimony,the trial judge must form the opinion that such an order would facilitate the giving of a full and candid account by the witness or otherwisebe in the interest of the proper administration of justice. [105] Subsection (3) sets out a non-exhaustive list of factors that a judge is to consider in determining whether a an order permittingremote or screened testimony would “facilitate the giving of a full and candid account by the witness” or “otherwise be in the interest ofthe proper administration of justice”.

It reads: 486.2(3) In determining whether to make an order under subsection (2), the judge or justice shall consider (

a) the age of the witness; (

b) the witness' mental or physical disabilities, if any; (

c) the nature of the offence; (

d) the nature of any relationship between the witness and the accused; (

e) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (

f) whether the order is needed to protect the identity of a peace officer who has acted, is acting or will be acting in an undercovercapacity, or of a person who has acted, is acting or will be acting covertly under the direction of a peace officer; (f.1) whether the order is needed to protect the witness's identity if they have had, have or will have responsibilities relating to nationalsecurity or intelligence; (

g) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;and (

h) any other factor that the judge or justice considers relevant. [106] An order permitting a witness to testify from outside the courtroom is a departure from the presumptive rule in an adversarialtrial that witnesses give their testimony in the presence of the accused and the trier of fact. This presumptive rule, of course, is notunyielding. In R v Levoigiannis, (SCC), [1993] 4 SCR 475, the Supreme Court of Canada recognized that the use oftestimonial accommodations for vulnerable witnesses does not offend the principles of fundamental justice.

The right of an accused personto be in the sight of witnesses is not an absolute right, but one which is subject to qualification in the interests of justice (see also R v S.(J.),2008 BCCA 401, 315 DLR (4th) 24, affirmed 2010 SCC 1, [2010] 1 SCR 3).

By enacting the Criminal Code provisions relating towitness accommodation, Parliament has recognized that, in certain circumstances, permitting witnesses to testify remotely or with the useof a testimonial aid does not sacrifice trial fairness but rather enhances the truth-seeking function of the courts. [107] Since they were first enacted in 1985, the witness accommodation provisions in

Part XV of the Criminal Code (currently situatedin ss. 486 to 486.7) have been amended a number of times. The range and number of orders that may be made to ensure the safety andsecurity of witnesses and to facilitate full and candid testimony have broadened. One such amendment is of particular relevance in thiscase. The previous version of s. 486.2(2) provided that an order permitting remote or screen-protected testimony under that

section couldonly be made if the judge was of the opinion that such an order “is necessary to obtain a full and candid account” from the witness. In2015, Parliament amended this section, by removing the words “is necessary to obtain” and replacing them with the phrase “wouldfacilitate the giving of” and adding “or otherwise be in the interest of the proper administration of justice” (Canadian Victims Bill of RightsAct, SC 2015, c 13, s. 2 [Victims Bill of Rights]). [108] Parliament must be taken to have acted with purpose when it enacted the Victims Bill of Rights amendment to s. 486.2(2).

Thatamendment marks a notable change in the standard that must be met before a judge can exercise his or her discretion to make the order. Asthe Nova Scotia Court of Appeal observed in R v N.M., 2019 NSCA 4, 370 CCC (3d) 143 while orders under s. 486.2(2) should not begranted perfunctorily, the amendment to s. 486.2(2) reflects a “newly lowered threshold” that properly permits an order for remote orscreen-protected testimony on either of the bases listed in the

section (at paras 65​70). I agree with this observation. [109] While the “necessary to obtain a full and candid account” standard required by s. 486.2(2) prior to the Victims Bill of Rightsamendment was not met, for example, by the mere fact that a witness feared reprisal (see: R v D.(C.) (2010), (ONSC), 257 CCC (3d) 531 (Ont Sup Ct)), the new threshold under s. 486.2(2) does not require special circumstances for a judge to exercisehis or her discretion in favour of making the order (R v Blake and Khabemba, 2019 ONSC 6026 at para 20).

A different sort of analysis isnow required, with the operative inquiry being whether making a testimonial accommodation order will enhance, rather than impede, thetruth-seeking function of the trial (R v A.E., 2017 ONSC 3464 at para 22). d. The principles applied [110] The trial judge began her decision on this application by turning her attention to the text of s. 486.2(2). She catalogued the recentlegislative history and traced the evolution of the

section from 2001 until the present. She observed that the progression of the variousamendments “demonstrates a legislative trend” increasing the discretion afforded to trial judges in making witness accommodation orders. [111] The trial judge then observed that the Victims Bill of Rights amendment lowered the threshold for judicial intervention and,because of that, jurisprudence predating that amendment was no longer relevant. She also correctly noted that the applicant bears theburden of persuading the Court that the order sought would either facilitate the witness’ full and candid testimony or otherwise be in theinterest of justice.

[112] The trial judge began from the premise that accused persons “are entitled to observe the witness in the courtroom”. From there,she turned to an analysis of the criteria in s. 486.2(2). With respect to the first criterion, facilitating full and candid testimony, she reviewedthe relevant jurisprudence and concluded that the word “facilitate” should be interpreted to have its normal meaning.

Noting that therequisite threshold is low, she said that “the question in this respect becomes, is there evidence that allowing the witness to testify out ofsight would make it easy, easier or less difficult for the witness to give a full and frank testimony.” This is, in my view, a correct statementof the law. [113] Turning to the second criterion, the trial judge noted that the assessment of whether a witness accommodation order would be inthe interest of the proper administration of justice required several considerations, including the impact of such an order on the ability ofthe accused to make full answer and defence on one hand, and beneficial effects such as encouraging complainants to come forward andencouraging witnesses to participate, more generally, on the other. [114] The trial judge next observed that the determination of whether an order under s. 486.2(2) was appropriate required that sheanalyse the evidence before her in light of the considerations listed in s. 486.2(3). [115] She then turned to that analysis.

She noted the serious nature of the offences of which the appellants were accused and that J.R.’srelationship with each of the appellants was rooted in their mutual involvement in and connection to gangs and drug trafficking. Sheobserved the evidence that J.R. had in the past sold drugs, collected money and intimidated witnesses at Mr. Gordon’s behest and, on atleast one occasion, had violently assaulted another woman as a means of trying to dissuade that woman from testifying against him.

Shenoted that J.R. had testified that she had received threats and was afraid that she may be subjected to acts of intimidation or violentretribution similar to those she knew to have been committed by gang members against witnesses in other cases. J.R. testified that she wasin the Witness Protection Program, and the trial judge observed that J.R.’s location and identity had been protected as part of that.

Thetrial judge also recognized that, in cross-examination, J.R. acknowledged having testified at the preliminary inquiry without the benefit ofan order under s. 486.2(2), and that J.R. still faced charges relating to her role in disposing of Mr. Lee’s remains, for which she hoped toreceive some consideration in exchange for testifying. The trial judge also noted J.R.’s acknowledgement that, whether or not an order wasmade, she was prepared to testify and give a full and candid account. [116] After reviewing this evidence, the trial judge determined that an order under s. 486.2(2) was appropriate.

She said: Having regard to the circumstances and the evidence here in regard to the factors listed in s. 486.2(3) and the criteria set out I believe thatthe order sought would facilitate full and candid testimony and I believe the order would otherwise be in the proper administration ofjustice. I exercise my discretion to grant the order. [117] I see no error in this decision. The trial judge selected the proper legal test to be applied, examined the factors that needed to beconsidered and reached a conclusion that was open to her on the evidence.

Taking into consideration the nature of the offences, J.R.’srelationship to each of the appellants, her role in the events surrounding the commission of the offences and the testimony she gaveregarding the reasons for her fears and the concern for her safety, the evidence before the trial judge was more than sufficient to clear thehurdle required by s. 486.2(2) and find that an order for remote testimony would enhance – rather than impede ​- the truth seeking functionof the trial. [118] I also see no basis upon which to conclude that the trial judge failed to properly consider the factors listed in s. 486.2(3).

Whilesubsection (3) lists relevant matters that a trial judge must consider in determining whether to make an order under s. 486.2(2), it is not achecklist that requires all the listed factors to be present before a trial judge exercises her discretion. Given the discretionary nature of anorder under s. 486.2(2), as long as the trial judge does not materially misapprehend the evidence or fail to take into account the properconsiderations, the decision as to how those considerations are weighed is owed deference.

In this case, the evidence to which the trialjudge referred in support of her conclusion touched on the enumerated criteria in ss. 486.2(3)(c), (d), (

e) and (f.1). From this, I amconfident that, even though she did not specifically catalogue each of the considerations in s. 486.2(3) or conduct a specific analysis ofeach, the trial judge clearly directed her attention to those considerations and used them to guide the exercise of her discretion. I see noreason to interfere with her conclusion. [119] Accordingly, this ground of Mr. Bellegarde’s appeal must fail. 2. Was the jury charge inadequate? [120] The second ground of Mr. Bellegarde’s appeal relates to the trial judge’s final instructions to the jury. He submits there were twoways in which the jury charge was inadequate: (

i) it failed to properly explain the legal basis of constructive first degree murder, as thatconcept pertained to him; and (ii) it was cumbersome, poorly organized, confusing and failed to adequately explain how the evidencerelated to the issues the jury had to decide. [121] I would not give effect to this ground of Mr. Bellegarde’s appeal either. As I will explain, the trial judge’s final instructions metthe requirements for functional adequacy. a.

Jury instruction – the governing principles [122] A person charged with a criminal offence and tried by a jury is entitled to a properly, not perfectly, instructed jury (R v Jacquard, (SCC), [1997] 1 SCR 314 at para 2 [Jacquard]; R v P.J.B., 2012 ONCA 730 at para 41, 298 OAC 267 [P.J.B.]).Appellate review of the adequacy of jury instruction requires a functional approach, asking whether the charge read as a whole enabledthe trier of fact to decide the case according to the law and the evidence (R v Calnen, 2019 SCC 6 at para 8, [2019] 1 SCR 301 [Calnen]; Rv Mack, 2014 SCC 58 at para 49, [2014] 3 SCR 3; R v Jaw, 2009 SCC 42 at para 32, [2009] 3 SCR 26).

The instructions must be legallycorrect and fair; they need not be perfect (R v Badgerow, 2019 ONCA 374 at para 20, 146 OR (3d) 35). This means, when read as a whole,the charge must leave the jury with an understanding of (

i) the factual issues to be determined, (ii) the legal principles relating to thefactual issues and the evidence; (iii) the position of the parties; and (iv) the evidence relevant to the position of the parties on the various

legal issues (R v Knox, 2017 SKCA 8 at para 16, 36 CR (7th) 89; R v Daley, 2007 SCC 53 at para 29, [2007] 3 SCR 523 [Daley]; R vHuard, 2013 ONCA 650 at para 50, 302 CCC (3d) 469). [123] In R v Naistus, 2019 SKCA 4 [Naistus], Caldwell J.A. described the application of the “functional approach” to appellate reviewof jury instruction in this way: [21] [A]ppellate courts must examine the whole of the jury’s instructions to assess whether they achieve their purpose, namely, toequip the trier of fact with the tools necessary to make the findings required in the case at hand.

As this suggests, the Court cannotexamine a single piece of a jury charge in isolation from the rest of the charge or from what has occurred in the trial.

Matters such as theevidence adduced by the parties, the theories and submissions of the parties, and the parties’ suggestions and objections, if any, about thecontent of the jury charge are all material to the question of whether a jury charge functionally achieved its purpose (R v Jacquard atparas 33–36; R v Daley at para 58; Thériault v The Queen, (SCC), [1981] 1 SCR 336 at 343–344; R v Royz, 2009 SCC13 at para 3, [2009] 1 SCR 423); so too are the language, style and format of the jury charge chosen by the trial judge to convey his or herinstructions to the jury (R v Daley at para 30). [124] In terms of form and content, trial judges are entitled to latitude in how they order the instructions and in the words they use toconvey the necessary elements (Daley at para 30; Calnen at para 8).

There is broad discretion about how much evidence to review, whatstructure to use and how to organize the charge (R v Newton, 2017 ONCA 496 at para 11, 349 CCC (3d) 508 [Newton]). The importantpoint is that, at the conclusion of the charge, the members of the jury must understand their task and have the necessary help from theinstructions to carry it out (R v Menard, (SCC), [1998] 2 SCR 109 at para 27). b. Analysis i. Did the trial judge fail to properly instruct the jury on the elements of “constructive” first degree murder? [125] At trial, the Crown argued that Mr.

Bellegarde could properly be found guilty of murder as a principal, aider or abettor and thatthere were two bases upon which the jury could properly find him guilty of first degree murder: (

i) he committed a planned and deliberatemurder; or (ii) he murdered Mr. Lee while committing the offence of unlawful confinement. [126] Section 231(1) of the Criminal Code provides that murder is either

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